A personal view of the year in family law, part one

These ‘review of the year’ posts can easily get out of hand. The problem is not what stories to mention, but which ones to leave out. As a result, a summary of the year can turn into a multi-post saga, a trap I’ve fallen into in previous years. Accordingly, this year I’m limiting my review to two posts (I’m not sure one can do justice to an entire year in just one post of reasonable length). To achieve this, my review will not attempt comprehensive coverage of all major family law stories throughout the year. Instead, this is a highly personal summary of the stories that caught my eye when going back over the year’s news.

Whilst there was certainly no shortage of family law stories during 2015, I’m not sure that we can call it a vintage year. There were, for example, very few stories that were of such import that they ‘changed everything’, in the way that major legislation or the abolition of legal aid has done in the past. That is not to say, however, that there were no stories of interest…

The year began with the news that the largest of the new divorce centres, covering London and the south east and dealing with 40 per cent of all divorces in England and Wales, would not, as many anticipated, be located in the capital, but rather in the leafy market town of Bury St Edmunds in sleepy Suffolk. That town was therefore catapulted from pleasant backwater into the divorce capital of the world, a sobriquet that I’m not sure would impress the locals. Bury St Edmunds would commence its operations in June, receiving between 1,250 and 1,300 petitions for issue per week by October. For a summary of the pros and cons of divorce centres, see this post by Julian Hawkhead.

January also brought the welcome news that the Ministry of Justice had abandoned plans to increase the divorce application fee from £410 to £750 following an adverse reaction to a consultation on the issue. An issue of particular concern was that the rise would deter people from getting a divorce. However, no government minister will let such a minor consideration as justice to get in the way of an income-earning scam for long, and by the end of the year we were hearing that there were plans afoot to raise the fee to a slightly less greedy £550, still way in excess of the administrative cost of a divorce, which has been estimated at about £270. Needless to say, the rise was condemned as amounting to a ‘divorce tax’, which MPs were urged to reject.

Also in January the Department for Work and Pensions (‘DWP’) published figures for child maintenance. These informed us that a staggering £2.9 billion of child support arrears were ‘uncollectable’. The DWP tried to put a spin on the figures, by telling us that the number of absent parents who were now paying towards the cost of their children through the Child Support Agency had hit an ‘all-time high’, with nearly 9 out of 10 of non-resident parents within the CSA system now contributing towards child maintenance to support their children. Note the word ‘contributing, i.e. not all paying the full amount due – it seems that just getting the absent parent to pay something is now considered a victory. Despite the DWP’s efforts, however, the issue of the child support debt would not go away, as we will see in my next post.

At the end of January the Court of Appeal criticised His Honour Judge Dodds for his ‘unrestrained and immoderate language that had to be deplored’ in his handling of a child’s application for a DNA test to establish her real father. Judge Dodds was also criticised in connection with his conduct and management of two other cases, ultimately leading to him receiving an official reprimand for serious misconduct from the Judicial Conduct Investigations Office.

Moving on, in March the Supreme Court handed down its decision in Wyatt v Vince, in which it allowed the wife to proceed with her financial remedies application, despite the fact that it had been made some eighteen years after the parties were divorced. The case caused quite a stir in the media, although as I said at the time we should not get too carried away – as Lord Wilson made clear, the wife is only likely to be entitled to a modest award, at most.

I won’t dwell on the next story, as it really is a case of the obvious. On the 12th of March the Commons Justice Select Committee published a report looking at the impact of the legal aid changes brought about by LASPO. Unsurprisingly, the Committee found that the legal aid reforms harmed access to justice, causing enormous strain on the family courts and poorer outcomes for those going through the justice system. Who would have guessed?

There was a sign of the times later in March, when we Mr Justice Hayden barred five teenage girls who had shown an interest in going to Syria from travelling abroad. The girls – two aged 15 and three aged 16 – were made wards of court, had their passports removed and were banned from leaving England and Wales. This was just the first of a number of judgments throughout the year in which the family courts attempted to get to grips with this issue.

In April Baroness Hale told The Times that she wanted to see the introduction of no fault divorce, something that she has called for before, and something that I’m sure most family lawyers would like to see. Perhaps we may not have to wait that long. In October David Bacon MP’s ten minute rule bill to introduce no-fault divorce passed its first reading. It will have its second reading on the 22nd of January, although I won’t hold my breath that it will be passed.

In May we had an example of that rare bird: a successful Barder appeal. In Critchell v Critchell the husband’s father died quite unexpectedly, less than a month after a consent order had been drawn up, setting out an agreed financial/property settlement. The husband inherited about £180,000 from his father’s estate, and his liability to repay an £85,000 loan from his father was extinguished. The wife successfully appealed against the consent order, claiming that the inheritance was a Barder event, which invalidated the basis or fundamental assumption upon which the consent order had been made. The husband appealed to the Court of appeal, but his appeal was dismissed.

I will finish this part of this review with a case which typifies the new family justice landscape post-LASPO. In Re Baggaley the President extended indefinitely an order made last year by Mr Justice Peter Jackson banning Nigel Baggaley, a McKenzie friend, from court. Mr Baggaley had sworn at opposing lawyers a number of times and had “faced up” to a barrister in court while advising a mother in a family case. The President described his behaviour as “quite unacceptable” and “disgraceful”. Such are the perils of seeking legal assistance in these post-LASPO days.

Image by baron valium via Flickr

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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